Rewis v. United States
| Decision Date | 24 December 1969 |
| Docket Number | No. 25625,25631.,25919,25625 |
| Citation | 418 F.2d 1218 |
| Parties | James Wintfored REWIS, Appellant, v. UNITED STATES of America, Appellee. Mary Lee WILLIAMS, Appellant, v. UNITED STATES of America, Appellee. Robert Lee FULLER, Sr., and Oliver Louis Nightengale, Sr., Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Samuel S. Jacobson, and Eugene Loftin, Datz & Jacobson, Jacksonville, Fla., for appellant.
Joseph W. Hatchett, Asst. U. S. Atty., Jacksonville, Fla., Milton J. Carp, Charles Ruff, Attys., Dept. of Justice, Washington, D. C., Edward F. Boardman, U. S. Atty., for appellees.
Before TUTTLE, WISDOM and BELL, Circuit Judges.
This is a consolidated appeal from three separate convictions in the United States District Court for the Middle District of Florida. The appellants were tried before a jury and convicted on various counts of violating 18 U.S.C.A. § 1952.1
The appellants, James Rewis, Mary Lee Williams, Robert Lee Fuller and Oliver Nightengale, were indicted with seven other defendants in connection with an alleged numbers operation, which, without dispute, was being conducted at the home of Mary Lee Williams in the town of Yulee, Florida, a small community approximately fifteen miles south of the Georgia-Florida state line. Judgment of acquittal was entered by the trial court as to four defendants and the jury thereafter acquitted two other defendants, but returned guilty verdicts against all of the appellants on various counts of violating this section of the Federal Criminal Code. The government argues that Rewis was the leader of the operation which was being conducted at Mary Lee Williams' home and that the other appellants, Fuller and Nightengale, were connected with the operation as workers or as players. Only Rewis and Williams were Florida residents. Fuller, Nightengale and the other acquitted defendants were Georgia residents. The government's theory was that Fuller and Nightengale actually travelled in interstate commerce with the intent to violate the Florida statute, Section 849.09, F.S.A. outlawing the promoting or conducting of any lottery; that they would be guilty whether they used these interstate facilities for the purpose of coming into Florida and placing bets themselves at the Williams' residence, or were acting as employees of Williams and/or Rewis in the conduct of the operation. The government contends that in either event they would be guilty of the substantive counts for which they were convicted, even though they were both acquitted of the conspiracy count.
The government further contends that whether or not Fuller and Nightengale were proved to have been co-conspirators, nevertheless the conspiracy and substantive charges against Rewis and Williams would stand, because they were shown by ample evidence to have caused Fuller and Nightengale, as well as other unnamed or named travelers from Georgia to patronize the establishment for gambling purposes.
The case against Fuller and Nightengale is very thin, indeed, if it must, as we think it does, depend upon a showing that they were other than bettors themselves.
Whether the reading of the federal statute be casual or intense, it appears that it is not aimed at making a federal crime out of a person's crossing a state line for the purpose of placing a bet, if the placing of such a bet is a crime in the state which he enters. If appellants Fuller and Nightengale are to come within the coverage of Section 1952(a) (3), it would require a broad interpretation of "carry on" or "facilitate." The language of the statute appears clearly to be aimed at those things or people who aid, help or assist the promotion of, or making easier or possible, the illegal actions mentioned in paragraph three. We think that, at the least, the word "facilitate" means, as stated by the Court of Appeals for the Seventh Circuit, in United States v. Miller, 379 F.2d 483, at 486, "to make easy or less difficult." We do not believe that the patronizing by interstate gamblers of a gambling establishment fits within the terminology of "promote, manage, establish, carry on, or facilitate the promotion, management, establishment or carrying on of any unlawful activity."
It thus becomes unnecessary for us to determine whether the Florida statute which the government contends these two appellants crossed state lines to violate is itself violated by a person's participating as a bettor as distinguished from a person acting in a proprietary manner.
We conclude that the convictions against Fuller and Nightengale cannot stand because there was insufficient evidence to show that they were other than participators in placing bets at the Williams establishment, and, as such, they could not have been found by the jury to have been guilty of any overt act prohibited by the federal statute.
What has been said thus far does not apply to Rewis and Williams. It is not in dispute that these two appellants were the actual proprietors of a numbers game which was frequented by patrons who crossed the Georgia state line to reach their place. Moreover, there is actual evidence of the participation in the gambling taking place at the Williams' residence by these two particular non-residents, Fuller and Nightengale. There is no merit in the argument, made on behalf of Rewis and Williams, that because we find Fuller and Nightengale were not members of the conspiracy their conviction as conspirators should be set aside. The jury verdict need not be construed as holding that Fuller and Nightengale did not utilize the facilities of interstate travel to patronize the gambling establishment operated by these appellants.
Appellants further contend, however, that neither Rewis nor Williams was shown ever to have crossed any state lines in connection with their undoubted violation of the Florida anti-gambling statute. We must thus, therefore, determine whether their conduct in holding themselves out as a place where interstate travelers could place bets was itself a violation of subsection (...
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